Bhagwan Das Bhagat vs Emperor

Adami, J.—The appellant, Bhagwan Das Bhagat, has been found guilty of the murder of his brother Mahabir alias Nunoo Bhagat, by the Judicial Commissioner, Chota Nagpur, and has been sentenced to death. The sentence comes before us for confirmation.

On 4th October last, at dawn, the chaukidara, Motia Ghatwar and Budhna were returning from their rounds in village Bagodar Dih when they heard from the appellant and two other men that there was a dead body floating in the tank of Anant Lal. They went to the tank and saw the dead body of a man floating in the water. While Budhna stayed behind to keep watch, Motia went to the police station and gave information at 7 a, m. The Sub-Inspector recorded an information of an unnatural death, and wont off to the tank. He had the body taken out of the water in the presence of P.W. 11 and P.W. 12 and others, who identified it as that of Mahabir. It was in a very decomposed state. The upper half of a grindstone was found tied to the body by a rope round the chest, and a gamcha was tied round the neck. An inquest report was drawn up and the body was sent to Hazaribagh for post mortem examination.

The Sub-Inspector then went to Mahabir''s house where, on a charpoy in the verandah, he found a bloodstained lendra and a torn pillow. There were drops of blood on the floor leading from the charpoy to the back door which opened towards the bari, adjoining which is the tank where the body was found. Bhagwan Das, the appellant was questioned and stated that he had last seen Mahabir on Sunday the 29th September. He thought that Mahabir might have gone to his father-in-law''s house at Dumri. Ram Charitar, the son of the appellant was also questioned but gave no information, nor did the wife of the appellant. Bhagwan''s house was searched but nothing incriminating was found. The Sub-Inspector, however, had some suspicion against him because he knew that Bhagwaa had laid an information at the police station in June in which he said he suspected Mahbir to be the thief, and because there had been a quarrel between the two men who were brothers.

On 5th October, Saturday, Bhagwan made a statement to the Sub-Inspector and took him to his bari where, from a heap of manure he took out a gilaf wrapper. It showed signs of having been burnt and had stains of blood on it. Bhagwan was arrested and sent to the jail at Hazaribagh on 6th. On 11th October Bhagwan made a confession before the Magistrate.

The confession was a very full one It told how eight years before the two brothers and a nephew had divided the family inheritance, how Mahabir had encumbered his share and had tried to trick Bhagwan in conspiracy with one Iswar in an exchange of lands leading to a complaint by Bhagwan which was unsuccessful, how in February 1929 Mahabir executed a deed of gift of his lands in favour of Bhagwan and his son Ramcharitar, the agreement being that Bhagwan was to feed and maintain his brother; how Mahabir, at the instigation of Iswar, stole from Bhagwan''s house a box containing a deedof a sale by Iswar to Bhagwan, and information was given at the police station, and how on 19th July 1929 Mahabir, on the ground that he had not been fed and maintained as agreed, executed a deed cancelling the deed of gift executed in February.

The confession proceeds to relate how on the 29th September while Bhagwan was away, Mahabir went to a field which he had transferred to Bhagwan and cut and took away the marua crop from it. When Bhagwan gob home in the evening his son told him what had happened and he was very angry. At about 10 p, m. he went to the shop of one Madho and there met Chaman, Raghunath and Jungli. He told them what had happened and they, relating their experience of transactions with Mahabir, agreed that he must be put out of the way. The five men went to Mahabir''s house and finding him in the verandah took his gamcha and twisted it round his neck and strangled him. While Raghunath twisted the gamcha round Mahabir''s neck, Bhagwan helped by holding Mahabir''s hand. Then they took Mahabir''s body to the tank, fastened a grindstone by a rope round the chest and threw the body into the tank. They burned Mahabir''s cloth on the bank, but when they tried to burn his wrapper also, but finding it made too much light and might attract attention, Bhagwan buried it under a manurelheap.

At the inquiry before the committing Magistrate Bhagwan denied that he had killed Mahabir and said that the Sub-Inspector had beaten him and told him he would be made an approver, and so he had made the confession for fear of his life. The appellant''s son, Ramcharitar deposed before the committing Magistrate that on 29th when Bhagwan returned home at 6 p. m. he Ramcharitar, had told his father that Mahabir had robbed his marua. At midnight the boy went out to make water, and when he was returning he saw Bhagwan, his father, with Chumru, Jangli, Madho and Baghunath killing Mahabir. He saw them through a hole in the wall. He was attracted to look through the hole by the noise he heard.

In the Sessions Court Bhagwan adhered to his denial made before the committing Magistrate, and denied that anything was recovered in his presence. Ramcharitar in his examination-in-chief stated that he did not know how Mahabir died and that he did not go out to make water and that what he had said before the committing Magistrate was induced by a beating and tutoring by the constable and chaukidar. He admitted that he had deposed as recorded by the committing Magistrate, and in answer to a question said, after hesitation that what he had deposed during the inquiry was true. Then in cross-examination he denied that Bhagwan was angry when he heard Mahabir had cut his marua, and said that he, Ramcharitar, had seen nothing and never had said he had seen anything. He had twice been examined by the Sub-Inspector, and on the first occasion told him he had seen nothing, and on the second occasion had told the Sub-Inspector that he had gone out with his mother, and had come back, shut the door and slept.

In spite of the fact that the appellant retracted his confession both before the committing Magistrate and in the Sessions Court, and that Ramcharitar, the only eyewitness of the actual murder according to the prosecution, resiled from his statement made before the committing Magistrate, the learned Judicial Commissioner had held that the retracted confession has been so corroborated that the guilt of the appellant has been proved, and the assessors too have expressed opinion that he is guilty.

The oral land documentary evidence shows satisfactorily that the relations between the brothers were not happy. It is proved that in April 1928 Bhagwan filed a complaint against Iswar asking for inquiry into ''an alleged fraudulent exchange of lands between Mahabir and Iswar to the detriment of Bhagwan, that on 22nd February 1929 Mahabir executed a deed of gift in favour of Bhagwan and his son, and then on 19th July 1929 cancelled the said deed of gift because Bhagwan had failed to feed and maintain him according to the agreement. It is true too that Bagwan laid an information at the police station to the effect that he suspected that Mahabir had stolen a box containing some documents of his. Witnesses have shown too that on 29th in Bhagwan''s absence Mahabir cut the marua in Bhagwan''s field.

Therefore the confession has been corroborated in its account of the relations of the brothers up to the evening of 29th and the motive it supplies for the murder.

The grindstone found fastened to the body and the gamcha round the neck, as well as the production by Bhagwan of the wrapper with signs of burning on it corroborate the method of the murder and the disposal of the dead body given in the confession.

The learned Judicial Commissioner has found that the fact that Bhagwan kept silent and gave no information that his brother was missing also points to his guilt. I do not, however, think that this is a strong point, for having regard to the illfeeling between the brothers Bhagwan would care little if his brother was absent.

The question is whether the corroboration of the retracted confession in this case is sufficient to fasten the guilt on the appellant.

A retracted confession must be supported by independent reliable evidence corroborating it in material particulars, but it cannot be laid down as an absolute rule of law that a confession made and subsequently retracted cannot be accepted as evidence of guilt without independent corroborative evidence. Is the corroborative evidence in this case sufficient to fasten the guilt on the accused without any reasonable doubt? As to the actual murder the only witness put forward by the prosecution is Ramcharitar and he has resiled from his statement.

The learned Judicial Commissioner is inclined to rely on his statement before the committing Magistrate but his evidence can hardly be held to be reliable and to corroborate the confession. He denied all knowledge of the occurrence when first examined by the police, and it was only three days after when his father had made a statement that he came forward and said he had seen the actual murder.

Bhagwan Das says he was induced to make the statement by the hope held out to him that ho would be made an approver against the other men he mentioned as taking part in the murder. There is no evidence to corroborate his story that these men had enmity against Mahabir.

The medical evidence so far corroborates the confession that it shows that Mababir was dead before his body was thrown into the tank. The medical evidence is to the effect that death was not due to drowning. But the body was so far decomposed that it was impossible for the Civil Surgeon to determine what the cause of death was. No wounds could be noticed nor could it be said definitely that death was due to strangulation. The finding of the gamcha twisted round the neck would appear to corroborate the story of strangulation in the confession, but the finding of blood on the bed and ground and on the wrapper of the deceased produced by Bhagwan before police points the other way. I can find no good reason for the presence of so much blood, if strangulation was as shown by the confession, the cause .of death.

It may well be that Bhagwan had enmity with Mahabir and this was the cause why Bhagwan was suspected. There can be no doubt that the suspicion against him is very strong, but, in the light of the fact that he has retracted his confession and that Ramcharitar has resiled from his statement implicating Bhagwan I am very doubtful whether the fact that Bhagwan produced the wrapper of Mahabir and made a confession implicating other persons after the body had been discovered with a gamcha fastened round the neck which confession has afterwards been retracted is sufficient to show beyond reasonable doubt that Bhagwan caused the death of Mahabir. I would, therefore, give him the benefit of the doubt and acquit him.

Scroope, J.

I agree.